Citation Nr: 1018552
Decision Date: 05/19/10 Archive Date: 06/04/10
DOCKET NO. 09-15 295 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for type II diabetes
mellitus to include as being secondary to exposure to
chemical dioxins.
2. Entitlement to service connection for neuropathy of the
feet (claimed as numbness of the lower extremities) as
secondary to diabetes mellitus.
3. Entitlement to service connection for an acquired
psychiatric disorder, to include posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and an observer
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The appellant served on active duty in the US Marine Corps
from April 1962 to August 1966, and was awarded the Armed
Forces Expeditionary Medal.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of July 2007 of a
Department of Veterans Affairs (VA) Regional Office (RO). In
March 2010, the appellant presented testimony before the
undersigned Veterans Law Judge (VLJ) via a videoconference
hearing. A transcript of that hearing was prepared and has
been included in the claims folder for review.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The appellant has come before the Board asking that service
connection be granted for diabetes mellitus secondary to
alleged exposure to chemical dioxins while he was stationed
on the unincorporated organized territory of Guam. He
believes that service connection should be granted on a
presumptive basis if his allegations of herbicide exposure in
Guam are confirmed. 38 C.F.R. § 3.309(e) (2009). The Board
notes that the appellant has submitted, on an ongoing basis,
a significant quantity of evidence concerning the presence of
potentially pertinent toxic substances in Guam, including
herbicides, which some parties suggest may be attributable to
US military operations in Guam from around the time of the
appellant's period of service. He has submitted copies of
articles indicating that chemical dioxins, including Agent
Orange, Purple, and White, may have been stored and/or used
on Guam around the time the appellant served there. The
appellant has also submitted evidence which reflects that in
the 1990's, the Environmental Protection Agency listed
Anderson Air Force Base as a toxic site with dioxin
contaminated soil and ordered clean up of the site. Various
items of additional evidence further suggest similar findings
of contamination in Guam.
VA has developed specific procedures to determine whether a
service member was exposed to herbicides in a vicinity other
than the Republic of Vietnam or along the demilitarized zone
(DMZ) in the Republic of South Korea. VA's updated
Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii,
Chapter 2, Section C, para. 10(n) directs that a detailed
statement of the service member's claimed herbicide exposure
be sent to the Compensation and Pension (C&P) Service via e-
mail and a review be requested of the Department of Defense's
(DoD) inventory of herbicide operations to determine whether
herbicides were used or tested as alleged. If the exposure
is not verified, a request should then be sent to the US Army
and Joint Services Records Research Center (JSRRC) for
verification.
Unfortunately, the development efforts required by the VA's
updated Adjudication Procedure Manual have not been
accomplished. The RO has not provided a detailed statement
of the appellant's claimed herbicide exposure to the C&P
Service, nor has it requested a search of the DoD inventory
of herbicide operations in order to determine whether
herbicides were used or tested as alleged.
In order to comply with the procedures as provided for in
VA's Adjudication Procedure Manual, as discussed above, the
RO/AMC must provide a detailed statement of the appellant's
claimed herbicide exposure to the C&P Service and a review
must be requested of the DoD inventory of herbicide
operations to determine whether herbicides were used or
tested as alleged. If the exposure is not verified, a
request must then be sent to the JSRRC for verification of
the appellant's possible Agent Orange exposure at the various
military bases located on Guam during the appellant's service
there.
The appellant has also requested service connection for PTSD.
However, the VA medical records also reflect a diagnosis of
major depressive disorder (see VA treatment note dated in
October 2006). Although not claimed by the Veteran, the
Board has recharacterized the issue on appeal as indicated on
the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5
(2009) (a claimant without medical expertise cannot be
expected to precisely delineate the diagnosis of his mental
illness; he filed a claim for the affliction his mental
condition, whatever it is, causes him). A review of the
claims folder indicates that the RO has indicated, in its
discussion of the merits of the appellant's claim, that the
appellant did not experience an inservice stressful event
that would have lead to the development of PTSD. Yet, the
appellant's principal claimed stressors have nothing to do
with combat per se or being fired upon by the enemy. The
claimed stressors are related to the appellant performing
extra-ordinary missions while serving at a member of the
overland sea rescue team of the Marine Barracks Guam. That
is, he has reported that as a member of the rescue team, he
was involved in routinely rescuing people out of the Pacific
Ocean. In one situation, he, along with his team, was able
to rescue a child who had been swept out to sea. This was a
successful mission; however, he also participated in a rescue
operation that recovered a body that had been severely
disfigured by fish and other sea creatures. He mentioned
that he still has dreams concerning the body. While these
events do not involve the appellant being in a war zone or
being fired upon by the enemy, they still are, in and of
themselves, stressful events that are beyond the normal
everyday experiences of a soldier, airman, sailor, or Marine.
See Pentecost v. Principi, 16 Vet. App. 124 (2004).
Given the time period in which the appellant was stationed on
Guam and the type of incidents he reported that were
stressful, the Board finds this information sufficient to
verify that the appellant was exposed to significant, life-
affecting stressors. See Pentecost v. Principi, 16 Vet. App.
124 (2002). As his stressors are consistent with service and
an individual who performed rescue missions in hazardous and
life-threatening situations, the Board finds no further
verification of the appellant's stressors are necessary.
Accordingly, a VA examination is warranted to determine
whether the Veteran has PTSD due to his sea rescue stressors
and/or another psychiatric disorder that is related to
service.
Since the claims file is being returned it should also be
updated to include recent relevant VA treatment records
dating from August 2006. See Bell v. Derwinski, 2 Vet. App.
611 (1992).
Thus, to ensure that the VA has met its duty to assist the
appellant in developing the facts pertinent to his claim, in
accordance with the VCAA, and to ensure full compliance with
due process requirements, this case must be REMANDED to the
RO/AMC for the further development of evidence. Accordingly,
the case is REMANDED for the following actions:
1. The RO/AMC should take the necessary
actions to comply with the evidentiary
development procedures required by M21-
1MR, Part IV, Subpart ii, Chapter 2,
Section C, para. 10(n). The RO/AMC must
provide a detailed statement of the
appellant's claimed herbicide exposure be
sent to the C&P Service and a review be
requested of the DoD inventory of
herbicide operations to determine whether
herbicides were used, tested, or stored
as alleged. If the exposure is not
verified, a request must then be sent to
the JSRRC for verification of the
appellant's possible Agent Orange
exposure at Anderson Air Force Base and
any other military installation on Guam
during the appellant's service there.
2. The RO/AMC should associate with the
claims folder relevant VA treatment
records pertaining to the Veteran that
date from August 2006.
3. The RO/AMC should schedule the
appellant for a VA psychiatric
examination. It is noted that the Board
has determined that the appellant has
experienced stressors as a result of his
service as an overland sea rescue team
member. The examiner must be instructed
that only those events that the appellant
experienced as a part of this team may be
considered for the purpose of determining
whether the appellant was exposed to a
stressor or stressors in service.
If a diagnosis of PTSD is appropriate,
the examiner should opine as whether it
is at least as likely as not (a
probability of 50 percent or greater)
that PTSD was caused by the in-service
stressors found to be established for the
record by the Board.
If the examiner determines that the
appellant has a psychiatric disorder
other than PTSD or that co-exists with
PTSD, the examiner should opine as to
whether it is at least as likely as not
that the psychiatric disorder or
disorders other than PTSD are at least as
likely as not related to military
service.
The report of the examination should
include a complete rationale for all
opinions expressed. The diagnoses should
be in accordance with DSM IV. The entire
claims folder and a copy of this Remand
must be made available to and reviewed by
the examiner prior to the examination.
The examiner should state in the
examination report that the claims folder
was reviewed.
4. The RO/AMC should review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
report of examination. If the requested
report does not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific opinions
requested, the report must be returned
for corrective action. 38 C.F.R. § 4.2
(2009); see also Stegall v. West, 11 Vet.
App. 268 (1998).
5. Thereafter, the RO/AMC should
readjudicate the claims. If the benefits
sought on appeal remain denied, the
appellant and the appellant's
representative should be provided a
supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response. Thereafter, the
case should be returned to the Board, if
in order. The Board intimates no opinion
as to the ultimate outcome of this case.
The appellant need take no action unless
otherwise notified.
The purpose of the examination requested in this remand is to
obtain information or evidence (or both), which may be
dispositive of the appeal. Therefore, the appellant is
hereby placed on notice that pursuant to 38 C.F.R. § 3.655
(2009) failure to cooperate by attending the requested VA
examination may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited
handling is requested. The law requires that all claims that
are remanded by the Board of Veterans' Appeals or by the
United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2009).
_________________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).